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are currently four votes on the court (Justices Murdock, Bolin, Bryan and Wise) who would hold that § 23 permits a regulatory taking claim. Justices Moore, Parker, Shaw and Stuart, based upon their positions on rehearing in M&N, would hold that it does not. Justice Main’s views on the issue are unknown because he did not participate in the court’s decision.
Summary In summary, the following can be said as a result of the court’s decision in M&N: That § 235 cannot support a regulatory takings claim is now clearly established. A unanimous 8-0 vote of the court, both on original deliverance and rehearing in M&N, has established that to be the law. However, the applicability of § 23 to regulatory takings claims involving municipalities is uncertain for future cases. First, the court is evenly divided on the issue of whether § 23 applies to municipalities in the first instance. Justices Moore, Parker, Shaw and Stuart are of the view that it does not. Justices Murdock, Bolin, Wise and Bryan are of the opposite view and would hold that § 23 can be used as the basis of a regulatory takings claim against municipalities. Justice Main’s opinion on this point is unknown. Second, the court appears to be evenly divided on the issue of whether a physical taking under Willis is required in a § 23 claim. Four justices appear to believe that Willis continues to be good law and requires a physical taking before a § 23 claim can be made out. Three justices recognize the applicability of Willis and would overrule it on this issue, while one believes that § 23 can, consistently with Willis, be utilized as the basis of a regulatory takings claim. Again, because Justice Main did not participate in the court’s decision in M&N, his view on these issues is unknown. Whether the court will honor the rule of stare decisis and follow the majority opinion in M&N that § 23 is inapplicable to municipalities and requires a physical injury to property, or whether, in future cases in which Justice Main participates, the court will
depart from the holding of M&N, is uncertain. | AL
Endnotes 1. Birmingham attorney Angela Shields also served as appellate counsel for the town on this appeal. 2. Section Ala. Code 18-1A-32 provides in pertinent part: The judgment and any settlement in an inverse condemnation action awarding or allowing compensation to the plaintiff for the taking or damaging of property by a condemnor shall include the plaintiff’s litigation expenses. 3. Although there has been no Alabama appellate opinion holding that the AEDC provides a right of action for inverse condemnation, Justice Bolin in his dissent from the denial of rehearing in Town of Gurley v. M&N Materials, Inc., 143 So.3d 1, 46 (Ala. 2012), appears to believe that such a right of action exists under the AEDC. Justice Bolin stated in his dissenting opinion that he was of the view that Ala. Code § 18-1A-32 provides a property owner with a remedy for inverse condemnation when a governmental entity with the power of eminent domain “defaults on its obligation to commence a condemnation proceeding.” Justice Bolin stated his view that the remedy “is in the nature of a derivative action available to a property owner.” Justice Bolin stated that “Section 18-1A-32 Ala. Code 1975, wisely provides a property owner with a remedy when such abuses occur.” Justice Bolin stated that it was his “judgment” that M&N “properly availed itself of the state-law remedy provided by § 18-1A-32 in its complaint.” Justice Bolin was joined by Justice Wise in his dissenting opinion in M&N. 4. The supreme court in Logan Properties did note one additional claim that would be maintainable under § 235 which might technically not involve direct physical injury to property. The Court stated that: “[W]e have noted that § 235 is applicable in cases where an authorized entity engaged in ‘the construction or enlargement of its works, highways or improvements’ interferes with a nearby property owner’s right to access to his or her property.” 127 So.3d at 1175.
5. Justice Main recused and did not participate in the court’s decision. 6. The majority opinion stated in footnote 6 that although § 23 operated only as a limitation on the state from taking property without just compensation, § 23 was held to be applicable in this case because the property owned by M&N had been annexed by legislative action. The court stated: “In this case, the legislature enacted Act No. 2004-19, which annexed the at-issue property. Therefore, § 23 is applicable because of the legislature’s involvement with the Town’s annexation of the at-issue property.” 143 So. 3d at 10 n. 6. 7. Most recently, in Ex Parte Alabama Department of Transportation, 143 So. 3d 730, 741-42 (Ala. 2013), Justices Bolin, Wise and Bryan have reiterated their view in concurring opinions in that case that Willis was wrongly decided and should be overruled. Id.
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